Another week, another football story which gives rise to some interesting employment law questions, including employee demotion. This time, it involves Jose Mourinho and his public criticism of the Chelsea team doctor and physiotherapist after they ran on to the pitch during stoppage time of a match against Swansea to treat a player. After the criticism by Mourinho, it was widely reported that both employees would have their role substantially changed so that they would no longer be on the bench during matches. This made us think of the circumstances in which an employer may be able to demote an employee, and what the risks are in this course of action.

It is important for employers to note that demotions can be classed as a breach of contract if it is not allowed for within the disciplinary policy. The normal sanction for a breach of disciplinary policy is a written warning, final written warning or a dismissal, and therefore there should be agreement between the employer and employee if there is no contractual right to demote.

Demotion is a frequent factor in constructive dismissal claims, with employees often stating that they were demoted, leading to him or her resigning and claiming constructive dismissal. Even if the employer has not specifically labelled it a demotion, nor has there been a cut in pay, if a job description is altered so drastically that it feels like a demotion, an employee could be successful in a constructive dismissal claim at tribunal.

It is worth remembering that a demotion can be an act of discrimination. A demotion should be as a result of an employee's poor performance, not because they have asked to reduce their hours on return from maternity leave. The case of Gault v. AVX Ltd is evidence for a situation where a tribunal found that a woman who was demoted immediately on her return from maternity leave had been discriminated against.

The right to be accompanied at a disciplinary hearing does not just apply to a hearing that could result in dismissal. Employers should allow an employee to have a companion where a hearing could result in a demotion.

This is a complex area, and although there may be grounds when an employee can demoted, it is important that appropriate advice is taken before any decision is made around whether or not an employee is demoted.